On the Unsustainability of Constitutional Pluralism

Abstract

For years, the Court of Justice of the European Union (Court of Justice) and national constitutional courts – particularly the German Federal Constitutional Court (Bundesverfassungsgericht; FCC) – have engaged in what developmental psychologists might term ‘parallel play’. The courts have played alongside each other, but not with each other. They have shared an interest in the same object (ultimate legal supremacy), and each has seen that object as its own. Many EU law scholars have celebrated this unsettled state of affairs, labelling it ‘constitutional pluralism’. But constitutional pluralism is unsustainable, and just as children grow out of parallel play, so too must Europe's courts. The FCC's reference to the Court of Justice in the Gauweiler case not only has profound implications for the survival of the Eurozone, but the case also seems to signal the end of an era: Europe's two most powerful courts must finally confront the incompatibility of their positions on the issue of Kompetenz-Kompetenz.